What was the outcome of Tenancy Tribunal case 4780777?

The tribunal order states: Queen Street Realty Steven Dai must pay Rez Gardi and Kaz Gardi $5,096.52

How much money was awarded in case 4780777?

Bedroom Downstairs: $1,200.00 awarded to tenant; Compensation: Breach of quiet enjoym…: $575.00 awarded to tenant; Compensation: Failure to maintain- m…: $814.29 awarded to tenant; Compensation: Failure to maintain- m…: $2,644.11 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $865.72 awarded to landlord; Water Rates: $291.60 awarded to landlord

What type of tenancy dispute was case 4780777?

The primary dispute was State of repair. Related themes: Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4780777?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10674662-Tribunal_Order.pdf.

What was the outcome of Tenancy Tribunal case 4780777?

The tribunal order states: Queen Street Realty Steven Dai must pay Rez Gardi and Kaz Gardi $5,096.52

How much money was awarded in case 4780777?

Bedroom Downstairs: $1,200.00 awarded to tenant; Compensation: Breach of quiet enjoym…: $575.00 awarded to tenant; Compensation: Failure to maintain- m…: $814.29 awarded to tenant; Compensation: Failure to maintain- m…: $2,644.11 awarded to tenant; Property Damage: $1,000.00 awarded to tenant; Filing Fee: $20.44 awarded to tenant; Rent Arrears: $865.72 awarded to landlord; Water Rates: $291.60 awarded to landlord

What type of tenancy dispute was case 4780777?

The primary dispute was State of repair. Related themes: Exemplary damages, Mould & damp.

Where can I read the official tribunal order for case 4780777?

The official Ministry of Justice published order is available at https://forms.justice.govt.nz/search/Documents/TTV2/PDF/10674662-Tribunal_Order.pdf.

10 Taurikura Way, Fairview Heights, Auckland 0632 Tenancy Tribunal Case 4780777 — State of repair

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Reasons

Claims and awards in Tenancy Tribunal application 4780777 — net $5,096.52 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 20 July 2024	$865.72		Rent arrears (to 20 July 2024
Water rates	$291.60		Water rates
Compensation: Breach of quiet enjoyment		$575.00	Breach of quiet enjoyment
Exemplary damages: Breach of quiet enjoyment		$1,000.00	97. I make an order for the landlord to pay $1,000.00 in exemplary damages for its breach of section 38 of the RTA.
Compensation: Failure to maintain- mould in		$814.29	Failure to maintain- mould in
bedroom downstairs		$1,200.00	77. I make an order for the landlord to pay $1,200.00 in exemplary damages for its breach of its s45(1)(b) of the RTA obligations.
Compensation: Failure to maintain- moulid in		$2,644.11	Failure to maintain- moulid in
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,157.32	$6,253.84
Net award		$5,096.52
Total payable by Landlord to Tenant		$5,096.52

Both parties attended the hearing on 6 August 2024.

The tenant has applied for exemplary damages, compensation, refund of the remainder of the bond paid out to the landlord without proof of tenant debt, and reimbursement of the filing fee following the end of the tenancy. Where has the $4,600.00 bond been distributed?

The parties agreed the tenancy ended on 20 July 2023.

The tenants confirmed they received $1,955.89 pursuant to a mediator’s order dated 16 February 2024.

The landlord confirmed they received $2,644.11 from the bond based on claims worth $2,897.10 for the following: a. Rent arrears of $1,030.00; b. Break lease fee of $1,322.50 ($1150.00 plus GST); c. Water rates of $291.60; d. Lawns of $92.00 ($80.00 plus GST); and e. Cleaning of $161.00 ($140.00 plus GST).

The tenant is disputing the following claims over their bond: a. They say there was no rent arrears as they paid a week’s rent in advance; b. They were told they could break the fixed term tenancy on the following conditions and met these conditions and the landlord should be estopped from claiming additional costs: i. You can move out once we find a suitable tenant, otherwise we will charge you from the time you move out till the time the new tenant move in; ii. We will start looking for new tenants, please cooperate with us for the viewing times; iii. The advertising fee of $85+gst ($97.75) will be charged to you since it’s an early termination.” c. They were told by Simon Dai that he would take care of the lawns and the tenants did not have to mow it and it has not produced an invoice to prove the claim; d. The landlord did not incur any cleaning costs and have not produced an invoice to prove the claim.

How much is owed for rent and water rates?

The parties confirmed the tenants entered a fixed term tenancy which commenced on 27 January 2024 and was to end on 1 February 2024.

The parties agreed to the fixed term tenancy ending early. It ended by agreement on 20 July 2023.

The landlord provided rent records and water rates invoices which prove the amount owing at the end of the tenancy.

The rent summary proves the rent arrears were $865.72 as of 20 July 2023. These arrears arose from a rent underpayment of $515.00 on 31 March 2023 and again on 7 July 2023 and a rent overpayment of $164.28.

The parties agreed that the tenants owed $291.60 for the final water rates. This amount formed part of the $2,644.11 partial bond the landlord has received.

I have refunded all the partial bond paid to the landlord, as it had not produced any evidence to support the claim over the bond. I have deducted the proven water rates and rent arrears amounts owing in this Order. Is the landlord entitled to more than the advertising fee when agreeing to end a fixed term tenancy?

The tenants sought approval to end their tenancy early as they say they could not work or study from home without internet services and were having other repair and maintenance and breach of quiet enjoyment issues.

The tenants produced an email from the landlord, responding to their 12 June 2023 letter of concern and request for early termination of the tenancy, dated 13 June 2023. This email confirms the landlord is agreeable to the fixed term tenancy ending early on the following conditions: a. You can move out once we find a suitable tenant, otherwise we will charge you from the time you move out till the time the new tenant move in; b. We will start looking for new tenants, please cooperate with us for the viewing times. c. the advertising fee of $85+gst ($97.75) will be charged to you since it’s an early termination.”

The tenants have proven they met all these conditions.

The parties confirmed a new tenant moved in on 21 July 2024 and tenants paid rent to 20 July 2024.

The tenants say they cooperated with the landlord for the viewing times.

The landlord says it was difficult to arrange a times to do viewings as the tenants did not respond to their email requests for 24 hours. The landlord says they had tried to call the tenant and got no response.

The tenants produced a text message chain from the landlord starting on 20 June 11:34pm asking if someone can view the property the next day at 2:30pm to 3:30pm. The head tenant says she was overseas, and her sister was at work and didn’t get the message until the next day. The head tenant proved she responded in 3 minutes to say that time doesn’t work for us and gave Steven her sister’s number to arrange suitable times. The head tenant proved her sister then sent the landlord some alternative times for viewings, people viewed the premise and a new tenant was found.

The tenants proved they paid the landlord the requested advertising fee of $85+gst ($97.75). This was paid separately by the tenants and is not included I the Order as it is not one of the costs deducted from the bond unlawfully by the landlords.

The conditions in the break lease agreement between the parties contained in the landlords 13 June 2023 email were all fulfilled by the tenants. The landlords then tried to charge the tenants a further break lease fee (labelled as rental commission) of an additional one week of rent plus GST ($1,322.50). The landlord unlawfully deducted this amount from the bond.

The landlord says that he assumed the tenants would pay that fee as the owner has incurred the $1150.00 plus GST costs and he is now seeking to claim that back as he feels he should not have to bear the break lease fee.

The landlord and the tenants agreed to ending the fixed term tenancy early, on three very clear conditions. A break lease fee of $1,322.50 was not one of these conditions. The tenants relied on the landlords promise that if they met the three conditions, they could end the lease early for no additional costs other than the $97.75 advertising fee. The landlord is therefore estopped from going back on that promise and trying to impose additional conditions and costs on the tenants that was not part of the agreement between the parties clearly recorded in the landlords 13 June 2023 email to the tenants.

I am satisfied the tenants met the condition in the 13 June 2023 email and they cannot be charged an additional $1,322.50 rental commission. The landlord’s claim for this amount to be deducted from the bond is dismissed. Are the tenants liable for $161.00 cleaning costs and $92.00 lawn mowing costs?

At the end of the tenancy the tenant must leave the premises reasonably clean and tidy, remove all rubbish, return all keys and security devices, and leave all chattels provided for their benefit. See section 40(1)(e)(ii)-(v) Residential Tenancies Act 1986. The tenant is required to replace worn out smoke alarm batteries during the tenancy. See section 40(1)(ca) Residential Tenancies Act 1986. The tenant must also replace standard light bulbs.

The landlord says the tenant did not leave the premises reasonably clean and tidy. The landlord produced photographs from the exit inspection that show the stove top and oven were not clean, the lawns were not mowed, the gardens needed weeding and there were dent in the carpet from the bed castors. The landlord also claims the house generally was not left in a clean and tidy condition and the new tenants had to clean it themselves before they could move their belongings into the premise and had to mow the lawns and clear the weeds. The landlord says they did not have time to get these things done between tenancies and the new tenants did not want them to send contractors in to undertake this work when they were moving in.

The tenants’ position is that the landlord did not have to pay for cleaning or mowing the lawns because the new tenants took care of it. Therefore, the landlord has not incurred any costs that they can claim compensation for, despite having claimed $92.00 lawn mowing costs and $161.00 cleaning costs from the tenants’ bond.

The landlord has produced an email trail with the new tenants showing that the landlord has agreed the new tenants only have to leave the premises in the same condition as they received it at the beginning of the tenancy. The landlord says it should be allowed to deduct these future expenses from the tenant’s bond as it will incur these costs when the new tenants end their tenancy.

The landlord could have given the new tenants a rent rebate in recognition of them agreeing to bring the premise back to a reasonably clean and tidy condition and charged that loss to the tenants or paid the new tenants to do the work and on charged that to the tenants or paid a contractor to undertake this cleaning and yard maintenance work and on charged that cost to the tenant. It did none of these things.

The landlord cannot hold money from the tenants’ bond for an undefined alleged future cost it may incur but has not incurred to date. If the landlord agreed to the new tenants leaving the premise in the condition they found it, it has agreed to absorb that future cost as being a cost of doing business and a cost that allowed it to have no gap in rental income between the tenancies.

The landlord’s claim for $92.00 lawn mowing costs and $161.00 cleaning costs, to be deducted from the bond, is dismissed.

There was much discussion about whose responsibility it was to mow the lawns during the tenants’ tenancy. I have not recorded the arguments put forward by each party about this issue as it is a moot point. The landlord has not incurred the lawn mowing costs it was trying to claim, it has produced no invoices to prove the amount claimed and as such its claim for lawn mowing costs to be paid by the tenant would fail regardless of whose responsibility it was to mow the lawns during the tenancy.

Did the landlord failure to maintain the premises?

Rez Gardi and Kaz Gardi claims that the landlord has breached their obligations under section 45 (1)(b) of the Residential Tenancies Act 1986 (“RTA”).

Under section 45(1)(b) of the RTA, the landlord has an obligation to investigate and repair a defect brought to its attention, within a timeframe that is reasonable in the circumstances. In Collins v Professionals Hutt City Ltd, the Wellington District Court held “what that time is depends not only on the gravity of the problem but also on the objective evidence of the attempts made by the landlord to investigate, and put right, whatever the problem might be”. 1

There is an obligation to repair, even if the tenant has notice of the state of repair of the premises when entering a tenancy agreement.

A tenant may give a landlord 14 days’ notice to remedy a breach of the RTA and/or any relevant enactment in relation to buildings, health and safety, but should do so in good faith and to remedy a real and significant breach 2 . However, notice from the tenant is not required if the landlord knew of the need to repair 3 or the need for repair was apparent from observation 4 .

There is also failure to repair if the repair is ineffective, non-complaint or unsafe 5 .

Breaching this s45(1)(b) obligation is an unlawful act for which exemplary damages may be awarded up to a maximum of $7,200.00. See section 45(1A) and Schedule 1A Residential Tenancies Act 1986.

General damages may also be awarded in the form or rent reductions, water rates reductions or compensation for the stress, inconvenience and loss of amenity suffered by the tenants. Internet Services

The tenants say that before they agreed to rent the premise, they were not told there was no internet connectivity to the property. Further, they say they were misled by Simon Dai who showed them a modem already in the house in the master walk-in wardrobe and told the tenants they just needed to change over the internet provider. Consequently, the tenants say they were expecting there to be internet services to the house and for it to be a simple exercise for them to get their current internet service provider to move their account to the new premises.

The landlord says the issue of the internet was never discussed prior to the tenants taking on the tenancy and that the tenants were aware this is a new build and that had no one had lived in the premise before. As such, he says there was no internet in the property at the time it was advertised or tenanted.

The tenants say the landlord advertised the property as having internet connectivity but did not have a copy of the advertisement. The landlord denied 1 Collins v Professionals Hutt City Ltd DC Wellington CIV-2009-085-1431, 24 February 2019 at [15]. 2 Brough v Housing NZ Ltd NZTT1848/1, 27 May 202 at [13]. 3 Berghan v Ponsonby Property Management Ltd trading as L J Hooker [2015] NZTT Manukau 2845 at [9]- [11]. 4 Barfoot & Thompson Ltd v Casey DC Auckland CIV-2005-004-1762, 7 November 2007 at [4]. 5 Staife v Aegis Trust [2016] NZTT Auckland 3314 at [31]. this had ever been placed in the advertisement and denied Simon Dai had pointed out the modem in the property to the tenants during their viewing.

The landlord confirmed, before the tenants moved in, Steven Dai tried to sort the internet connection out with One NZ and requested installation is a timeframe that he reasonably believed would ensure connectivity by the time the property was tenanted. He says he was aware One NZ was backlogged from COVID-19 and that it was taking time to get new installations. That is why he arranged a request for installation well before the property was advertised for rent. He also confirmed he had been surprised at the number of difficulties he had with the internet service provider. Further, he confirmed that after the tenants moved in, he found out that Chorus could not install the services until another third-party specialist provider had done something at the roadside.

The tenants stated they had not been told anything about the connection issues and so they made a separate request to One NZ to have the property connected to the internet.

The first time the tenants contacted the landlord about the internet issue was by email on 13 February 2024. The tenants say the landlord responded confirming he had been informed by the internet provider they would be connecting fibre service on 3 March 2023. The tenants conveyed to the landlord they were not happy with this date and told the landlord on 15 February 2024 they wanted to be the point of contact with Chorus and they had been told by One NZ that two requests were confusing in the system and asked that one request be withdrawn. The tenants elected for the landlord to ask for its request to be the one withdrawn so the tenants could try to get the installation done faster. Based on the tenants’ request, on 15 February 2023, Steven Dai cancelled his request for installation by email.

The tenants say they were trying to make the installation date earlier than 3 March 2023 as from 27 January 2023 to 13 February 2023 they had been on the phone every day to One NZ trying to get the service installed. The tenants say they raised this issue by telephone and in person with Simon Dai earlier than 12 February 2024. Simon says he cannot remember discussing this issue with the tenants.

The tenants provided the Tribunal with a letter from One NZ that explains the reasons for the delay in the fibre connection being installed. It is due to the complexity of the geography of the land that made it hard to connect fibre and it had determined the landlord had to pay for the install as it would be an unusual install that was more expensive than the internet service provider would cover.

Steven Dai says the tenants did not send him the 13 June 2023 email from One NZ and did not give him the opportunity to remedy the issue. They just asked to terminate the tenancy. He says after the tenants gave notice, says he contacted One NZ and tried to get the issue sorted out and found a contractor and got it installed the week after the tenancy ended.

The tenants say they had been having conversations with the landlord about the need they had for the internet and the issues one tenant was having with needing to work from home since 12 February 2024 after they found their existing internet provider could not transfer their internet service when there was an existing request for an internet connection in the system from the landlord.

The tenants say they left their old property due to unreliability of the internet and that the internet was important to them as one tenant worked from home, and one was studying and needed internet access. The tenants say the landlord did not communicate the delay in the installation of fibre with them and should of.

The tenants say it was a misrepresentation that the property already had internet connected when the landlord knew there was no fibre connection or broadband internet access and it was not as simple as transferring internet service from one provider to another. The tenants claim that if they had known there was no internet access when they viewed the property they would not have signed up to the property. The tenants reiterated internet access was in the advertisement and they had told the landlord during their viewing that they would use the premise as a home-based office and they needed the internet. They when they moved in Simon Dai pointed the modem out to them.

The landlords say at no time did they say they guaranteed the tenants could get internet services to the property or that the property already had internet connectivity. In addition, Simon Dai continued to deny telling the tenants there was a modem in the wardrobe and that they could transfer to service from the provider. However, the tenant produced as text dated 27 February 2023, that says “what is the device” and he says “what device” she says “there was a modem” and he says “yes they came once before and they didn’t get it finished as something needed to get something on the street”. The tenants says the text is evidence the modem was there before they moved in and they were checking with Simon Dai whether it was the modem he had told them had been previously connected to the internet. Further the tenants say the landlord knew there was an issue with installation and didn’t tell the tenants and reaffirmed their position Simon Dai had misrepresented the situation to them.

I am satisfied that the evidence shows: a. There were communication issues between the landlords and the tenants; b. The situation with internet connectivity was not clearly explained to the tenants before they took on the tenancy nor when they first moved into the premises; c. There is compelling evidence the landlord had tried to get the premises connected to the internet well prior to the tenancy commencing and that the landlord encountered more issues in achieving connectivity in a reasonable timeframe than he had reasonably believed he would; d. It is more likely than not Simon Dai did tell the tenants the internet had been or connected when he pointed out the modem to the tenants, because he thought the presence of it in the house meant the internet provider had done its installation job. There appears to have been communication issues between Simon and Steven Dai regarding the installation and more likely than not that Simon Dai did not understand fully the issues Steven Dai had been having with One NZ and Chorus. The evidence given at the hearing does not suggest Simon Dai was trying to deceive the tenants; e. The tenants did not convey to the landlord, before taking on the tenancy, no internet connectivity would preclude them from taking up the tenancy, as they thought the property had been connected to the internet and took on the tenancy under the belief all houses offered for rent would have internet services connected to them; and f. If the property had been advertised as having internet connectivity, the tenants could have requested the landlord provide them with a means to connect to the internet remotely until the premise was connected or to pay their mobile hotspot fees. They did not make these types of requests and they could not produce any evidence to support the claim internet connectivity was included in the advertisement that say misled them to taking the tenancy.

On the balance of probabilities, I find: a. The tenants did not make it sufficiently clear that they saw having existing internet connectivity as a condition of their tenancy, and assumed from what Simon Dai said to them, in addition to seeing the modem in the wardrobe, that the premise had connectivity; b. The landlords had fully investigated the connectivity issues did not keep the tenants fully informed of what issues they were having with the internet service provider connecting the premise to internet services; c. The landlord and the tenants each tried hard to get the internet connectivity established but the issue ultimately lay with the service providers who were waiting on a third-party contractor to do something at the roadside before the service could be connected to the premises; d. The landlord had agreed to pay any costs involved in getting the premise connected after being informed that Chorus don’t pay for usual installations, but this information had not been conveyed to the tenants; and e. Although the tenants moved out of the premises because of the internet issues, the landlord had taken all reasonably practicable steps to try to resolve the issue in timely manner but the tenants’ involvement in trying to get resolution with the third-party service providers added to the communications issues that also contributed to the delay in resolution of the issue for the tenants.

For the reasons set out in paragraph 54 above, I am satisfied the landlord met its obligations to investigate and repair the internet connectivity issue in a reasonable timeframe, in all the circumstances, and accordingly dismiss the tenants claims for compensation and exemplary damages. Pest problem- ants, lizards and cockroaches

The tenants say they raised the issue about an infestation of ants, lizards and cockroaches earlier in their tenancy and despite having a terminator come in, the problem persisted. They say they found ants, lizards, and cockroaches in their home almost on a daily basis and produced photographic evidence to support his claim.

The landlord proved on 11 February 2023 it sent pest control to undertake extermination services and it had a warranty on the service.

The landlord confirmed the tenants raised this issue with it again on 12 June 2023 and it made immediate contact with the pest control company. It says that on 23 June 2023 the pest control company tried to make contact with the tenants and couldn’t get hold of them.

The landlord provided an email, dated 23 June 2023, from Bug King saying he had tried to reach Rez and she was in Europe and told them to call Kaz on the number Rez gave him (her work number) and she wasn’t responding to voice mails.

On 10 July 2023 Bug King confirms by email he has left many voice messages and the tenants never come back to him and asked the landlord “how do you want us to proceed”.

The landlord has proven it took all reasonable steps to address the tenants pest issue and the tenants did not respond to the service provider who could have come back at no cost to refumigate the premise.

The tenants have failed to prove this claim and it is dismissed for lack of sufficient evidence the landlord failed to investigate and remediate the issue in a reasonable timeframe. Mould in the downstairs bedroom

The tenants say over the last few months, there has been a serious development of mould in the large bedroom downstairs and that as a result four out of their five family members have developed asthma that they have never had before. One of these family members who developed the worst asthma symptoms slept in that bedroom.

The tenants confirmed that when they moved into the house they enquired and were assured that there were sufficient heat pumps in the house to keep it warm and dry and there was mould present. The family member that slept in the mouldy room was told by her medical health professional that her breathing problem was more likely than not coming from her inhaling dangerous mycotoxins spores that can cause a plethora of health problems for healthy people like this family member.

The tenants produced photographic evidence of heavy mould on the side of the bed base and mattress and carpets and confirmed this bed was new when they moved into the premise. The tenants say they first raised the mould issue with the landlord on 12 June 2023.

The landlord confirmed this is a new house and that no one else had lived in it before the tenants. They proved the house had central air conditioning and ducts in every room as well as an externally vented fan in the bathroom, plenty of windows to ventilate the area and that the home is healthy homes standards compliant.

The tenants say they used the central air conditioning and aired out the house regularly but could not stop the mould from growing on the mattress and bed base.

The landlord says new tenants have been living in the house for a year and there have been no mould issues and there was no mould evident on carpet in that room after tenants moved out. The tenants say this is because they cleaned the carpet to try and remove the mould so it wouldn’t stain the carpet.

The landlord has proven the premise is healthy homes standards complaint and adequate ventilation and says because there was no mould on anything but bed base and mattress in downstairs bedroom that the issue had to be because of some act or omission by the tenant that led to the bed becoming damp and nothing to do with the premises or the landlord.

I am satisfied that the landlord relied on the house being new and adequately ventilated and that it did nothing to investigate the issue to see what may be causing the mould, including if there was a leak or anything else that could explain why the mould was forming in that room. Just because the house was new and healthy homes compliant it does not mean the landlord is absolved from its responsibilities to investigate what appears from the evidence to be a serious mould issue in that room.

I find the tenants should receive a rent rebate for the loss of amenity of the bedroom that they expected to be able to use during their tenancy due to the mould issue that was not investigated by the landlord and not remedied and the resulting health issues from living in a mouldy environment. I find it fair and reasonable for the tenants to receive a rent rebate of $150.00 per week for the period 12 June to 20 July 2023 (5 weeks and 3 days) for the landlord’s failure to investigate the concerns raised by the tenants in that period. 5 weeks x $150.00 per week = $750 plus $64.29 = a total compensatory sum of $814 29.

I also find that in failing to investigate the mould issue is a reasonable timeframe, the landlord has committed an unlawful act.

Where a party has committed an unlawful act intentionally, the Tribunal may award exemplary damages where it is satisfied it would be just to do so, having regard to the party’s intent, the effect of the unlawful act, the interests of the other party, and the public interest. See section 109(3) Residential Tenancies Act 1986.

I find the landlord intentionally committed an unlawful act by assuming the mould issue was exclusively the fault of the tenants and as such dismissing the tenants concerns and failing to investigate the issue of it could be establishe what the cause of the mould issue was.

I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. the landlord knew the tenants were having a significant mould issue on the carpet, bed base and mattress in the downstairs bedroom and that the family member sleeping in that room was suffering health issues as a result but failed to have this issue investigated in a reasonable timeframe; b. the tenants suffered the stress and inconvenience associated with the loss of the amenity of the bedroom as well as the health issued suffered by the family and of the tenants having to repeatedly follow the landlord up and remind him of his obligations under the RTA; c. It is in the interests of the tenants to receive exemplary damages for the stress, inconvenience and loss of amenity they have suffered; and d. It is in the public interest for landlord’s to be penalised as a disincentive to breaching their repair and maintenance obligations.

I make an order for the landlord to pay $1,200.00 in exemplary damages for its breach of its s45(1)(b) of the RTA obligations. The quantum is one sixth of the maximum exemplary damage award available for this type of breach. I find this quantum to be an appropriate reflection of the nature and seriousness of the breach. Did the landlord breach the tenant’s quiet enjoyment of the premises?

The tenants claim the landlord has breached their quiet enjoyment of the premise and has harassed them.

A landlord must not interfere with the reasonable peace, comfort or privacy of the tenant in their use of the premises. See section 38(2) Residential Tenancies Act 1986.

Breaching this obligation in circumstances that amount to harassment is an unlawful act for which exemplary damages may be awarded up to a maximum of $3,000.00. See section 38(3) and Schedule 1A RTA.

Harassment means "to trouble, worry or distress" or "to wear out, tire, or exhaust" and "indicates a particular pattern of behaviour directed towards another person". MacDonald v Dodds, CIV-2009-019-001524, DC Hamilton, 26 February 2010.

The tenants say there was a consistent lack of privacy as contractors came over to undertake work or to assess what was required to be done and these contractors and the landlord gave the tenant no prior notice or very late notice.

On 5 May at 4:56pm the tenants say they simply received a message stating “someone will come and fix the concrete outside”. They were not told when, what time, and for what purpose. They then received a follow up message at 8:27pm on 5 May 2023 that appeared to be a forwarded message from the labour workers stating, “Ok please tell the people ill cut it out tomorrow and replace it Monday they cannot drive on it till the following Mondays 7 days stay off with cars – from the concrete cutter.” The tenants replied, “Sorry? We cannot drive on what?” The response they received from the landlord was “the broken concrete outside”. At this point, they say they went outside, looked all around the front of the house and were unable to identify what broken concrete the landlord was referring too.

The tenants stated that they told the landlord it was unacceptable that on 8:27pm on Friday night they were told someone will be there the following morning without them being informed of the reason why or the full details of what time, what to expect, what part of the property would be worked on. They say they were not given adequate time to consider where they could park their three cars for the next seven days as they shared the driveway with five other houses, had very limited space for parking and the only access to the house was via the very steep driveway the leads to the main road.

The tenants say on Saturday 6 May 2023, at 7am, the concrete cutters arrived to cut the concrete and they were unable to move the cars immediately to enable them to cut the driveway as they had not been given sufficient information about when the contractors were arriving or what they were there to do. In the end they say they had no choice but to figure out a solution with the concrete cutters, as it was not the concrete cutters fault the issue had arisen.

The tenants say their neighbours also complained to the tenants about the noise so early on their days off and that the concrete cutters were blocking access to their driveways as well. The lack of sufficient notice and information cause problems not only for the tenants but also impacted their relationship with their neighbours.

The tenants say they tried their best to find alternative places to park their vehicles, as did the neighbours, but due to the limited space this was challenging for all involved. The tenants say this also caused further tension with one of their neighbours who kept complaining that they were blocking access to their property, but the tenants had no other choice as there was nowhere else to park.

The tenants say the entire situation could have been dealt with much better if the landlords had given them adequate notice and information that would have allowed them to prepare themselves and informed their neighbours of the impending weeklong disruption.

The landlord stated it had no control over when the contractors came, and the tenants didn’t tell him that time wasn’t convenient. In response, the tenants says they were not given the time the contractors were going to arrive the next morning and with less than 12 hours’ notice of the contractors coming they had no time to object.

The tenants also stated that on 18 April at 9:46am they were informed by text message that “someone is coming around 10am to upgrade the gas meter.” At 10am the contractor arrived. They were given less than 15 minutes notice were so shocked they did not think to turn the contractor away.

The tenants also say that on 21 February 2023 they were asked when someone could come to do maintenance on the heat pump. They say they responded that they would let the landlord know by that evening when a good time would be. Before the tenants had time to respond, someone was sent to their home on the same day at 8:30pm to do maintenance on the heat pump without first notifying them or confirming their availability.

They say that on several other occasions, the landlord has just shown up to do “inspections” without first notifying them or informing them of the reason for the visit. On one occasion they say they received a text message from Simon Dai saying “I will be outside in front of the house this afternoon with an inspector just checking the outside of the house. Don’t be alarmed if you see me”. They say they just saw the landlord looking behind the water tank and they had no idea when he arrived or why.

The landlords say they have the right to access the outside of the property and do not have to give notice to do so. They also say they have no control over when contractors are available and that they relied on contractors to make a suitable time with the tenants to undertake necessary works. Further, they should not be held accountable for contractors failing to give the tenants adequate notice and information on the repairs and maintenance being undertaken. I do not accept that landlords can defer their responsibility to a contractor to give adequate notice to a tenant and to keep the tenant informed of what work they have been engaged to do and why.

I find the landlord intentionally committed an unlawful act by repeatedly either going to the tenants’ home without giving them the courtesy of letting the tenants know they were there, not keeping the tenants fully informed of when and why contractors would be accessing the property and premises, and not giving the tenants the statutorily required notice when contractors were going to access the property or the premises.

I am satisfied it would be just to require the landlord to pay a sum in exemplary damages because: a. The landlord knew the tenants were uncomfortable with them repeatedly coming to the premises uninvited and lingering there or engaging contractors to undertake work without giving the tenants adequate notice and not keeping the tenants informed what the contractors were going to do, why and how long the work was likely to take; b. The tenants felt harassed and like they were under the constant observation of the landlord and that the landlord was disrespectful of their desire for peace, privacy and quiet enjoyment of the property they were paying rent for; c. it is in the interests of the tenants to receive exemplary damages for the breach of privacy caused; and d. it is in the public interest for landlord’s to be penalised as a disincentive to breaching their obligations to allow tenants to have quiet enjoyment of their home and privacy.

I make an order for the landlord to pay $1,000.00 in exemplary damages for its breach of section 38 of the RTA. accordingly. The quantum is one third of the maximum exemplary damage award available for this type of breach. I find this quantum to be an appropriate reflection of the nature and seriousness of the multiple breaches and the particular impact on the driveway incident on the tenants.

I also find the tenants should receive a rent rebate for the loss of amenity of the driveway for a week that they expected to be able to use during their tenancy and the breakdown of their relationship with their neighbours because they were denied sufficient time to inform the neighbours of the works needing to be undertaken and to work with the neighbours to find a solution to the impact of the driveway being unable to be used for a week. I find it fair and reasonable for the tenants to receive a rent rebate of $575.00 for the week they were unable to use their driveway and the stress and inconvenience they suffered because the landlord failed to keep them informed and to work with them to find a suitable time for the work to be undertake with minimal disruption to the tenants and their neighbours. This compensatory sum gives the tenants a 50% rent rebate for that week. Reimbursement of the filing fee

Because Rez Gardi and Kaz Gardi has substantially succeeded with their claim I have reimbursed the filing fee.

Reasons

Claims and awards in Tenancy Tribunal application 4780777 — net $5,096.52 NZD. Amounts reconciled from the published order (claims sum and net total). Verify on MoJ.
Claim	Landlord	Tenant	Reason
Rent arrears (to 20 July 2024	$865.72		Rent arrears (to 20 July 2024
Water rates	$291.60		Water rates
Compensation: Breach of quiet enjoyment		$575.00	Breach of quiet enjoyment
Exemplary damages: Breach of quiet enjoyment		$1,000.00	97. I make an order for the landlord to pay $1,000.00 in exemplary damages for its breach of section 38 of the RTA.
Compensation: Failure to maintain- mould in		$814.29	Failure to maintain- mould in
bedroom downstairs		$1,200.00	77. I make an order for the landlord to pay $1,200.00 in exemplary damages for its breach of its s45(1)(b) of the RTA obligations.
Compensation: Failure to maintain- moulid in		$2,644.11	Failure to maintain- moulid in
Filing fee reimbursement		$20.44	Filing fee reimbursement
Total award	$1,157.32	$6,253.84
Net award		$5,096.52
Total payable by Landlord to Tenant		$5,096.52